Oulds v. Holcim (Canada) Inc., 2013 HRTO 240

Human Rights Tribunal of Ontario

B E T W E E N:

Kevin Oulds

Applicant

-and-

Holcim (Canada) Inc. and Kevin Hickey

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: February 11, 2013

Citation: 2013 HRTO 240

Indexed as: Oulds v. Holcim (Canada) Inc.

WRITTEN SUBMISSIONS

Holcim (Canada Inc.) and Kevin Hickey, Respondents

Samantha Crumb, Counsel

Introduction

1This Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleges that the respondents discriminated against the applicant on the basis of disability in respect of employment. Specifically, the applicant claims the respondents failed to accommodate his disability when they refused to allow him to return to work with restrictions and instead, required him to access short term disability ("STD") benefits.

2On January 9, 2013, the respondents filed a Request for Order During Proceedings ("RFOP") seeking a deferral of the Application and the removal of the individual respondent. The applicant did not respond to the RFOP.

BACKGROUND

3The applicant reported a workplace injury to his lower back on June 18, 2011 and filed a claim with the Workplace Safety Insurance Board (the "WSIB"). On July 22, 2011, the WSIB allowed his claim for health care expenses, but denied his claim for loss of earnings. On November 9, 2011, the WSIB notified the applicant that his work-related injury had resolved and that as a result, there would be no further health care entitlement beyond November 15, 2011. The applicant filed an objection to the WSIB decision and the corporate respondent was notified of the objection by letter dated February 23, 2012 from the WSIB.

4The Application was filed on October 30, 2012. The applicant states he was off work from October 15 to October 19, 2012 with lower back pain. He states further that sometime around October 19, 2012 he asked to return to work with restrictions for the next fourteen days (October 22 to November 5, 2012). The applicant alleges that he was told that he could not return to work with restricted duties. He alleges further that this advice came from the individual respondent.

5Although the Tribunal does not have a complete documentary record of the WSIB proceedings, it appears that after filing the Application, the applicant filed a further objection to the WSIB decision on November 16, 2012. In the objection, the applicant asserts his June 18, 2011 injury is still causing him pain and is preventing him from working without restrictions. He states he was off work because of his disability from October 22 to November 5, 2012. He asked for his WSIB claim to be "reopened and validated". He has also requested the ability to work with restrictions if and when necessary because the employer has a duty to accommodate him and it has failed in this duty.

REQUEST TO DEFER

6In the RFOP, the respondents state the applicant was off work from October 15, to November 5, 2012 because of back pain. STD benefits were approved for the applicant for the period of October 18, 2012 to November 2, 2012. The respondents state further that the applicant returned to full duties with no restrictions on November 5, 2012 and has not been absent from work since that date.

7In his Application, the applicant alleges the respondents failed to accommodate his disability-related needs for a fourteen day period commencing sometime after October 19, 2012. This is the same issue that is raised in the WSIB objection dated November 16, 2012. The applicant did not provide a Response to the RFOP that would counter this conclusion. Accordingly, there appears to be a significant overlap in the facts and issues in the applicant's WSIB appeal and his Application to the Tribunal. The respondents submit that the Tribunal ought to defer the Application pending the resolution of the applicant's objection to the WSIB.

8An application is deferred so that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given the significant overlap in the facts and issues in the WSIB appeal and the Application, deferral of the Application is appropriate. The respondents' Request to defer the Application is granted.

9The Tribunal orders the deferral of this Application pending the conclusion of the proceedings under the Workplace Safety Insurance Act 1997, S.O. 1997, c. 16. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the WSIB appeal process has concluded:

14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any. [emphasis added]

10If and when any party seeks to bring the Application back on before the Tribunal in accordance with Rule 14 of the Tribunal's Rules of Procedure, the respondents may pursue their Request to remove the individual respondent, after a Response to the Application has been filed.

11I am not seized of this matter.